Executive Privilege, or who blinks first. July 9, 2007

President Bush today directed two former staffers to refuse to provide testimony to the House Judiciary Committee pertaining to last years firing of attorney generals that the committee had subpoenaed. The White House has claimed that it is their prerogative to refuse this type of request under the right of executive privilege, a largely undefined extra constitutional deference presidents have asserted since the days of George Washington, who refused a request by the house for information relating to an international treaty which he believed to be improper.

Although there is no specific reference for executive privilege in the constitution, scholars, lawyers, presidents (especially presidents), and the courts have recognized to some extent that such a privilege exists based on two basic arguments: One, the principal behind the separation of powers found in the constitution implies that oversight of the executive branch by other branches of government has some limitations, and two, the president needs to be able to seek advice that is off the record, because doing so will give the president the widest range of ideas available, in other words, advisor’s may not speak freely if they know that what they say will become a matter of public record.

For the two hundred or so years that the government has struggled with dueling oversight functions, the main sticky point surrounding executive privilege is the scope of what kind of information can be protected this way. In th US v. Nixon, the Supreme Court acknowledged the need for some level of official confidentiality, but ruled that it was not absolute, and ordered Nixon to turn over information and audio tapes to the special prosecutor for the Watergate investigation.

The laws pertaining to executive privilege, and what to extent the president can protect what he feels is confidential remains unclear, usually a compromise is reached between the two parties, and a constitutional showdown is avoided. In this instance, the administration offered to let the former staffers testify before the committee, but would do so without a written record, and not sworn in. The Judiciary Committee did not accept this position, and issued a subpoena for the records. If a compromise cannot be reached, the issue will be sent to the courts, and sets the stage for a ruling that can have broad reverberations on executive secrecy, whichever side comes out on top.

Does the Libby commutation open the door for more to come? July 4, 2007

President Bush has been particularly stingy about using the presidential pardons. Since the beginning of his first term in 2001, the president has fewer pardons and sentence reductions than any president in the last 100 years. With that in mind, one of the most interesting questions asked at yesterdays White House press conference to me, is if the president will be applying a similar standard for the other 3000 commutation applications currently pending.

According to White House Spokesman Tony Snow, the president handled the case on a “routine manner in the sense that the president took a careful look.” Still unanswered, was whether or not this careful look will need to be applied evenly in order to protect the White House politically.

The editors of the National Review argued yesterday that Libby should be pardoned because the case was a politicized one from the beginning, and with the lack of an underlying crime (no one was ultimately charged with illegally leaking Valarie Plames identity), the investigation should have been shut down then and there. Others have argued that the sentence was too harsh for someone with so many years in the public service, and a clean record.

Under these circumstances, does the president get some political cover in choosing this case to intervene in a ‘routine manner’, or is the door open for others convicted in court with similar stories, especially those who claim that the sentence given was harsh for the nature of the offense?

An even bigger question is, does this square with the Justice Departments Supreme Court win over Victor Rita, where the court ruled to uphold a sentence of 33 months in prison for obstruction of justice, for a man who served in the armed services for 25 years, and had no prior criminal history to be taken account of during sentencing?

In todays New York Times, Alabama lawyer Susan James, who is appealing an obstruction of justice conviction of the states former governor remarked: “What you’re going to see is people like me quoting President Bush in every pleading that comes across every federal judge’s desk.”

President Bush’s commutation of Scooter Libby sets no legal precedent for any case present or future. What I will be looking out for, is more stories about others who have been rejected for a presidential pardon, and whether the gates will be open any wider during the waning months of his presidency.